Patrick Levin, Committee for Public Counsel Services, for the
defendant.

Present: Agnes, Neyman, & Henry, JJ.

HENRY,
J.

Seven
hundred and forty-two days after Nasahn Davis was arraigned
in the Boston Municipal Court on charges of carrying a
firearm without a license in violation of G. L. c. 269,
§ 10 (a.), he filed a motion to dismiss under
Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979). That rule
provides that a criminal defendant who is not brought to
trial within twelve months of the "return day, "
here the arraignment, "is presumptively entitled to
dismissal of the charges unless the Commonwealth justifies
the delay." Commonwealthv.Spaulding, 411 Mass. 503, 504 (1992). "The
delay may be excused by a showing that it falls within one of
the '[e]xcluded [p]eriods' provided in rule 36 (b)
(2), or by a showing that the defendant acquiesced in, was
responsible for, or benefited from the delay."
Ibid. Accord Barryv.Commonwealth, 390 Mass. 285, 292, 298 n.17 (1983).
"A failure to object to a continuance or other delay
constitutes acquiescence." Commonwealthv.Tanner, 417 Mass. 1, 3 (1994).

The
defendant's motion to dismiss was allowed; on appeal, the
Commonwealth contends that only eighty-one of the 742 days
since arraignment are includable in the rule 36 calculation,
contending, among other things, that 268 days of delay
attributable to court congestion when both sides were ready
for trial must be excluded. We conclude that delays
attributable to court congestion -- if the defendant objects
-- are not excludable from the rule 36 calculation, unless
the judge makes the necessary findings under rule
36(b)(2)(F). Because the Commonwealth cannot justify the
delays in excess of the 365-day limit, we affirm the order
allowing the defendant's motion to dismiss.

Discussion.

The
parties agree that the number of days that elapsed between
the defendant's arraignment on March 19, 2012, and the
date on which he filed his motion to dismiss, March 31, 2014,
is 742 days.[1] Subtracting twelve months (365 days) from
this total, as well as the 218 days the parties agree are
excluded from the calculation, [2] leaves 159 days for which the
Commonwealth must justify a delay.[3]

We
first consider delays due to court congestion and then
address the remaining contested periods of delay in
chronological order. "To a large extent, we are in as
good a position as the judge below to decide whether the time
limits imposed by the rule have run." Barry,
390 Mass. at 289. "This is so because '[w]hen a
claim is raised under rule 36, the docket and minutes of the
clerk are prima facie evidence of the facts recorded
therein.' The other portions of the record are also
documents which we can evaluate as well as the judge below.
'In these circumstances, while we will give deference to
the determination made by the judge below, we may reach our
own conclusions.'"[4]Commonwealthv.Farris, 390 Mass. 300, 303-304 (1983), quoting from
Barry, supra at 289-290.

1.
Court congestion-related delays.

Four of
the continuances contributing to the delay of the
defendant's trial, accounting for 268 days, are
attributable to what the parties agree was court congestion.
The occasion of each of these four delays was a lack of any
or a sufficient number of jurors, but the length of the
delays was also due at least in part to the court's
calendar constraints. These delays include the periods from
June 19 to September 17, 2013;[5] October 2 to October 29,
2013;[6] November 2, 2013, to January 21,
2014;[7] and January 2 3 to March 30,
2014.[8] The defendant objected to each of these
delays and the motion judge found that these 268 days are
attributable to the Commonwealth. See Commonwealthv.Denehy, 466 Mass. 723, 731-732 (2014)
(in order to include delay in rule 36 calculation, defendant
must object, even where objection is futile because delay is
due to court congestion). Indeed, the Supreme Judicial Court
has repeatedly stated that "normally court congestion is
not a sufficient justification for the denial of the right to
a speedy trial." Spaulding, 411 Mass. at 507.
See Commonwealthv.Beckett, 373
Mass. 329, 332 (1977) ("[C]ourt congestion is not the
responsibility of the defendant and must be weighed against
the Commonwealth in assessing the reasons for the delay. But
the weight to be given to such a cause for delay is not so
heavy as a deliberate prosecutorial attempt to delay a
trial"); Commonwealthv.Conefrey, 410 Mass. 1, 4-5 (1991) ("As a
general proposition, court congestion by itself will not
constitute an adequate justification for the denial of the
right to a speedy trial. . . . However, reasons of court
congestion may be adequate to excuse delay when ... a
defendant has agreed to a continuance based on congestion,
rendering him at least partially responsible for the
delay") .[9]

Nonetheless,
the Commonwealth argues that it should not be penalized for
the delays because the Commonwealth was ready for trial on
the dates in question and was not at fault for the delays.
See Commonwealthv.Lauria, 411
Mass. 63, 69-70 (1991); Reporter's Notes to Rule 36,
Massachusetts Rules of Court, Rules of Criminal Procedure, at
210 (Thomson Reuters 2017) ("[T]he Commonwealth should
not be penalized . . . when the cause[s] for delay are beyond
its control"). In fact, the defendant forthrightly
concedes that the prosecution did all it could to press the
case forward.[10]

The
Commonwealth relies primarily on three cases in arguing that
the congestion delays should not be included in the rule 36
calculation. However, these cases are factually
distinguishable, as they involve defendants who acquiesced to
continuances.

In
Lauria, the defendants' cases were delayed for a
significant period of time due to a misplaced case file.
Lauria, 411 Mass. at 65. During this delay, only the
prosecutor attempted to advance the case by submitting
letters notifying the judge and the parties that motions were
still pending before the court. Id. at 65-67. The
Supreme Judicial Court declined to adopt a per se rule that
delay caused by misplaced court papers always counts against
the Commonwealth. Id. at 70. Rather, the court held
that the defendants' rule 36 motions were properly denied
because "a disinterested attitude by a defendant in the
progress of his case can permit a finding of
acquiescence." Id. at 68. Here, the
Commonwealth does not argue, nor is there evidence to
suggest, that this defendant demonstrated disinterest in the
progress of his case. The defendant repeatedly objected to
delays attributable to court congestion, and persisted in
attempting to advance his case.

The
second case on which the Commonwealth relies,
Spaulding, essentially held that the Commonwealth
may justify a delay because of court congestion if the
defendant has agreed to the continuance. Spaulding,
411 Mass. at 507. Significantly, the court noted in
Spaulding that "normally court congestion is
not a sufficient justification for the denial of the right to
a speedy trial." Ibid. The court made an
exception "when ... a defendant has agreed to a
continuance based on congestion, rendering him at least
partially responsible for the delay." Ibid.,
quoting from Conefrey, 410 Mass. at 5. Here, the
defendant noted his objection at each delay occasioned by
court congestion and cannot be said to have agreed to the
continuances.

Finally,
in Denehy, the Supreme Judicial Court determined that because
there was no evidence that the defendant had raised an
objection to the court-imposed continuances, including
continuances caused by court congestion, he should be deemed
to have acquiesced to them, as the court did not "wish
to penalize unnecessarily the Commonwealth for delays to
which it may object as well." Denehy, 466 Mass.
at 732. The Commonwealth argues that the motion judge misread
Denehy to hold that because the defendant objected
to the court congestion delays, the time must be attributed
to the Commonwealth. While we agree with the principle that
the Commonwealth should not be unfairly penalized for delay
when it also was ready for trial, this does not end the
inquiry where, as here, the defendant zealously guarded his
right to a speedy trial. We do not hold that all congestion-
related delays to which a defendant objects will necessarily
be counted against the Commonwealth in all circumstances;
rather, where the defendant objects to the delay and did not
cause, acquiesce to, or benefit from the delay, rule 36
constrains the Commonwealth to justify the delay under an
exception to rule 36 in order for the time to be excluded
from the rule 36 calculation.

Rule
36, titled "Case Management, " is "designed to
assist the trial courts in administering their dockets."
Reporter's Notes to Rule 36, supra at 209. The
rule provides a means for defendants and the public to secure
speedy trials and promotes "the public interest in the
efficient operation of the criminal justice system."
Barry, 390 Mass. at 296. "The goal of providing
defendants with speedy trials can be obtained only if the
rule is interpreted to place certain obligations on all
parties, including prosecutors, the trial courts, and
defendants." Ibid. "[W]e are mindful that
the courts must also control their own dockets so that
criminal cases are brought to trial within the time periods
specified by rule 36." Lauria, 411 Mass. at 70.
And we understand that our trial courts sometimes "deal
with overwhelming caseloads without adequate staff or
resources." Ibid.

The
eight enumerated exceptions in rule 36(b)(2) are meant to
ensure that the Commonwealth is not unfairly charged with
delays that, if included, "would upset the balance of
obligations envisioned by the rule." Spaulding,
411 Mass. at 506. Rule 36(b)(2) provides that the following
periods of time "shall be excluded" in computing
the running of the rule 36 clock:

"(F) Any period of delay resulting from a continuance
granted by a judge on his own motion or at the request of the
defendant or his counsel or at the request of the prosecutor,
if the judge granted the continuance on the basis of his
findings that the ends of justice served by taking such
action outweighed the best interests of the public and the
defendant in a speedy trial. No period of delay resulting
from a continuance granted by the court in accordance with
this paragraph shall be excludable under this subdivision
unless the judge sets forth in the record of the case, either
orally or in writing, his reasons for finding ...

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